Today’s post would normally come from our artsiest contributor.  We expect that such a post would compare some decision to the movies for which awards were handed out at Sunday’s “Golden Globes,” possibly with a comment about how the Oscars are more important.  We did not see the “Golden Globes,” are unlikely to see the Oscars, and saw few of the movies/performances nominated for the major awards.  All that we can go off of at this point are the lists of winners and nominees.  Whether we agree with the decisions on the merits cannot be determined at this time. The most we can say is that we would respect the process.

This brings us to a tidy Missouri state court summary judgment decision in McDonald v. Cox, No. 1231-CV02646 (Mo. Cir. Ct. Jan. 2, 2014), which comes to us from Mike Carroll at Shook.  While a defense win on preemption from Missouri—not exactly our favorite jurisdiction of late—is of interest to us, we can only say so much.  We can see that the process was followed as it should have been—not always a foregone conclusion when the process results in judgment for device manufacturer defendant—but not enough to judge the merits.  This is because, proving the adage that a (wo)man who is his/her own lawyer has a fool for a client, the pro se plaintiff failed to respond to a well-supported motion for summary judgment based on preemption.  As we know, pro se plaintiffs can get a little extra leeway despite law, like cited in McDonald, stating that the same standards apply to them. Perhaps because the plaintiff was an “inactive attorney,” he suffered consequences of failing to respond that a lay pro se plaintiff might have avoided.  (Or, perhaps, this sort of diligence is why plaintiff was not an active attorney.) Regardless, we feel a little bit cheated out of what could have been a more interesting read—and a more significant win—if plaintiff had put up the kind of fight presaged by amending his complaint and filing motions for default.

If he had, then we might have seen whether a Missouri court followed the poor lead of the Indiana court in Malander in adopting a non-preempted cause of action for assuming a duty of reasonable care by providing “technical assistance” to surgeons.  We also might have seen how the court responded to anti-preemption arguments about alleged express warranties in the presence of disclaiming language.  We might have even known which of the defendant manufacturer’s pacemakers or defibrillators was really at issue in the case.  As it was, we had a Class III device, a summary judgment motion supported by affidavits establishing no genuine issue of material fact, and Missouri law making failure to respond to a properly supported summary judgment fatal.  In this case, death by preemption.  (Before we get accused of insensitivity—an accusation to which we are not completely insensitive—the plaintiff not only did not die but did not appear to have suffered any discernible physical injury.)

Even in the case of a walkover preemption summary judgment in a state court, we must find something less than optimal.  Like spotting Gandalf’s watch in The Two Towers, the engine under the chariot in the recreation of the Battle of Carthage in Gladiator, or Amy Adams’s double-sided tape in American Hustle.  We wonder why some or all of this case got past the motion to dismiss stage. Neither the original complaint nor amended complaint specified the product at issue, even though express warranties were allegedly made about it.  Neither complaint even specified whether the device was a defibrillator or pacemaker, yet only one manufacturer of such products was sued. That does not quite make sense. We assume that this vagueness is why there was not a successful motion to dismiss all claims that would have been expressly preempted for a particular Class III device, especially if the complaint had identified the device’s basic regulatory status.  This begs the question of whether pleading rules—Missouri’s rules generally require “a short and plain statement of the facts showing that the pleader is entitled to relief” with “particularity” required for “the circumstances constituting fraud or mistake”—should require that the defendants and court be informed of plaintiff’s position with regard to preemption for a medical device. Shifting to the federal TwIqbal standards for didactic purposes, it is impossible to state a facially plausible claim against a medical device manufacturer “that the defendant is liable for the misconduct alleged” unless preemption is ducked.  We know preemption is generally treated like a defense, so one might say that there is no obligation for a complaint to plead around all defenses.  However, statute of limitation is undoubtedly a defense and it is hard to contend that a complaint should not indicate on its face when an alleged injury occurred.  To avoid a finding that a claim was time barred on the face of the complaint, complaints in product liability cases regularly include allegations about the application of the discovery rule or some other alleged reason why the passage of time from injury to initiation of the lawsuit does not bar the claims.  Perhaps defendants and courts should be more vigilant in requiring allegations about the applicability of preemption in medical device product liability complaints, certainly to the extent of requiring proper product identification.  That way, whatever claims get past the pleading stage have already been pleaded to a particular set of facts relevant to the application of preemption.  After all, not all plaintiffs are just going to let themselves be walked over.